The increased pressure placed on courts to complete matters comes with it the need to appropriately prepare all applications for adjournments. Michael Burke and Maria Walz appear every day before the Local Courts in the Newcastle area. Although they do their best to ensure that their clients' matters are before the Court in a timely manner they also have an appreciation of the need to ensure that their clients’ reasons for an adjournment of proceedings are appropriately put. An adjournment is simply when the Court puts a matter over to a later date.
To make an adjournment application you need to be aware of what rules the Court must adhere to when deciding whether or not to adjourn the matter. An examination of the Local Court Practice Notes reveals a very clear intention of the Local Court to strictly case manage all matters. Practice Note 1/2001 states the following: “…..as a general rule, practitioners cannot expect the court to consider applications for adjournment in any matter without cogent and compelling reasons. Tardiness in preparation, the late obtaining of instructions, the making of representations or change of counsel does not, of itself, justify the granting of an adjournment by the court”: Part 7. The practice notes have adopted a number of time standards, including the following: 95% of summary trials to be dealt with within 6 months.
100% of summary trials to be dealt with within 12 months.
95% of guilty pleas to be dealt with within 3 months, and
100% of guilty pleas to be dealt with within 6 months.
Section 40 of the Criminal Procedure Act (‘CPA’) governs the power to grant an adjournment and essentially states that a court may, at any stage, adjourn criminal proceedings if “it appears to the court necessary or advisable to do so.” There is a clear intention on behalf of the Local Court to focus on only granting adjournments where it is necessary and advisable to do so. An appeal against the decision to refuse an adjournment will be a restricted one: R v Callaghan [1966] VR 17. The considerations of the court include: The interests of the accused
The interests of justice: R v Cox [1960] VR 665, and
In some circumstances the interests of witnesses and the family of the victim: Murphy v R (1989) 167 CLR 94.
R (Cth) v Petroulias (No 11) [2007] NSWSC 533 is an interesting matter. In that case the accused made an application for an adjournment of the commencement of the trial date. The basis of the application was that the accused required time to raise money to fund his case; that is, to pay for his solicitor and counsel. In support of his application he presented evidence of a mistaken transfer of money and accordingly put to the Court that the monies would be available in the near future.
In considering whether discretion to grant the adjournment should be exercised, the court found that it should and accordingly adjourned the trial for two weeks. Some case law that might help to get you out of a sticky situation: Nitiva v DPP and 2 Ors [1999] NSWCA 332: The principles upon which an adjournment ought to be granted are well established. The court has discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: see Sullivan v Department of Transport (1978) 20 ALR 323.
As Deane J said in that case at 343 "…it is important to remember that the relevant duty of [the court] is to ensure that a party is given a reasonable opportunity to present his case": at [64]. Underhill v Murden [2007] NSWSC 761: Although a refusal to grant an adjournment is a decision wholly within the discretion of the judicial officer, an appellate court will intervene if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to the other party.
As was said by the High Court (Brennan, Deane and McHugh JJ) in Sali v SPC Limited (1993) 67 ALJR 841 at [843]: In Maxwell v Keun [1928] 1 KB 645 at [650, 657, 658] the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions.
Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.” (emphasis added): at [11] And further at [13]: His Honour went on to cite what was said by the High Court in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154, per Dawson, Gaudron and McHugh JJ: Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
The two cases above were supported by: Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953: Further, I am satisfied that the Second Defendant has failed to comply with statutory procedures in the Criminal Procedure Act 1986 and denied the prosecutor procedural fairness by declining to adjourn the proceedings: at [52] And further at [56]: In accordance with the principle referred to in Nitiva v Director of Public Prosecutions, the duty of the Court was to ensure that the prosecutor be given a reasonable opportunity to present the prosecution case. In my view, the Second Defendant deprived the prosecutor of such a reasonable opportunity in this case. To force the prosecutor to proceed on the first return date, in the circumstances of this case, gave rise to an injustice and denial of procedural fairness: Underhill v Murden (2007) 173 A Crim R 336 at 339 [11], 342 [25].
Don’t turn up with a general request for an adjournment, be ready to explain the reasons why one should be granted. Use the wording of the practice notes and judgements in your application.
If you have any questions about the above then contact Michael Burke or Maria Walz of our Crime and Traffic Law Team here at Burke Elphick and Mead Lawyers. The culture at Burke Elphick and Mead™ Lawyers is what sets us apart from other firms. We are a close-knit team of committed lawyers, who are passionate about people and their rights.
